State v. Canola

• Decision Date: 13 June 1975
• Parties: The STATE of New Jersey, Plaintiff-Respondent, v. Leonel CANOLA, a/k/a Leon Vasquez, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 224

135 N.J.Super. 224

343 A.2d 110

The STATE of New Jersey, Plaintiff-Respondent, v. Leonel CANOLA, a/k/a Leon Vasquez, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Submitted Sept. 23, 1974.

Decided June 13, 1975.

Stanley C. Van Ness, Public Defender, for defendant-appellant (Harvey I. Marcus, Designated Atty., Englewood, of counsel and on the brief).

Joseph C. Woodcock, Jr., Bergen County Prosecutor, for plaintiff-respondent (Adam Lawrence, Asst. Prosecutor, on the brief).

Before Judges COLLESTER, LORA and HANDLER.

The opinion of the court was delivered by

COLLESTER, P.J.A.D.

Defendant Leonel Canola, also known as Leonel Vasquez, was found guilty by a jury of the felony murders of Michael Bahtiarian and Harold Lloredo. ¹ He was sentenced to concurrent terms of imprisonment for life. This appeal followed.

The State's proofs showed that at approximately 9:50 a.m. on November 16, 1971 two armed men entered a jewelry store in Englewood and held up Michael Bahtiarian, the owner, and Aram Bagdasarian, an employee. Bahtiarian and Bagdasarian were forced into the back room where they were relieved of their personal jewelry and money. Two other men then entered the store carrying canvas bags and began to collect jewelry in the display cases. Bahtiarian was compelled to open one of the safes. While the robbery was in progress a delivery man and a salesman entered the store and were forced at gunpoint to the rear of the store. After three of the robbers left the store Bahtiarian grappled with the fourth man and Bagdasarian went to the aid of his employer. When the robber called for assistance one of his accomplices reentered the store and shot Bahtiarian. Bahtiarian, who had a pistol concealed on his person, then drew the weapon and shot his assailant, who ran from the store and collapsed and died on the sidewalk. Bahtiarian, who was mortally wounded, fell to the floor. The three other robbers escaped with jewelry valued at $65,000.

The deceased gunman was identified as Harold Lloredo who had resided in Elizabeth. On the day following the crime Detective Cubelo questioned Caesar Echevarria, Lloredo's former roommate. Echevarria told the detective he had been in defendant's New York apartment the night before the holdup with four men who were planning the robbery and identified them as Harold Lloredo, Fernando Geraldo, ² a man known as 'Toston,' ³ and defendant. He also told Cubelo that Lloredo said he would be leaving for Spain with $35,000 or $40,000 after the robbery. Echevarria said he had been in Canola's apartment when defendant returned after the robbery carrying a bag filled with jewelry and that Canola said he believed that Lloredo had been killed. Thereafter, Cubelo and other police officers, accompanied by Echevarria, went to defendant's apartment in Queens, New York. Ottoniel Trujillo, Canola's roommate, informed them that defendant had given him a watch and had gone to his brother's apartment in the Bronx, taking with him a bag of jewelry. The police then went to Jamie Canola's apartment where during a search for defendant they found a bag containing the stolen jewelry. When shortly thereafter Canola entered the apartment he was placed under arrest.

According to the testimony of the State's witnesses Canola confessed to his participation in the crimes charged. The first confession was made orally to Detective Cubelo at the New York police precinct immediately following defendant's arrest. The second confession was made the following day after defendant was returned to New Jersey when Canola was questioned by Assistant Prosecutor Buckley. His statement was recorded and transcribed by a court reporter.

In his confessions defendant admitted the robbery had been planned with Lloredo, Geraldo and Toston in his New York apartment. On the following day they drove to Englewood using two cars. Canola said Lloredo and Geraldo entered the jewelry store first and held up the persons inside. He and Toston then entered and collected jewelry in bags. When he, Toston and Lloredo left the store, Geraldo remained behind. He heard Geraldo call out to Lloredo, who reentered the store. Shots were then fired. Toston and Geraldo fled in one of the cars. Canola walked away with a bag of jewelry and took a bus to New York.

Defendant, testifying in his own behalf, denied that he participated in the crimes. He said that he accompanied Lloredo to Englewood because Lloredo told him he had some business there. They were joined by Geraldo and Toston, who were in another car. Canola said when they arrived in Englewood Lloredo left, telling him to remain in the car. A short time later Geraldo and Toston came to the car with three blue bags. They told him Lloredo would return later and then drove him to his New York apartment where Geraldo gave him one of the bags to hold for Lloredo. Canola said he did not realize a robbery had taken place until he opened the bag and found that it contained jewelry.

Several of the points urged by defendant on this appeal as grounds for a reversal can be disposed of summarily, namely: (1) error in granting the State's motion to sever counts charging armed robbery from trial of the indictment; (2) error in the questioning of witnesses by the trial judge; (3) error in the admission into evidence of a knife, gun and bullets found at the scene of the crime, and (4) error in the admission into evidence of photographs of the deceased victims. We have carefully considered the arguments advanced by defendant in support of each point and find them to be totally lacking in merit.

Defendant also contends the trial court erred in denying his motion to suppress evidence obtained as a result of a warrantless search of his New York apartment. He claims the entry into the apartment was illegal and that all evidence which followed, including defendant's confessions, were 'fruit of the poisonous tree' and therefore inadmissible. He argues that no probable cause existed to search the premises because there was no proof that Echevarria was a reliable informer and there was no independent effort by the police to corroborate the information received from the informer. We find no merit in this argument. Echevarria was not the traditional police informer whose disclosures of criminal activity require some verification of his trustworthiness in order to establish his credibility. He was a citizen-informer who occupies a different status. See generally, State v. Lakomy, 126 N.J.Super. 430, 434--437, 315 A.2d 46 (App.Div.1974). He furnished relevant information to the police and agreed to point out defendant's New York apartment to the officers and to identify the defendant. Accordingly, there was no need to verify his credibility and reliability before action was taken by the police. Based on such information and the independent knowledge of the police concerning the details of the crime there was sufficient probable cause to arrest the defendant. Having learned the names and addresses of two of the robbers, the police were in hot pursuit and continuously followed a trail from Elizabeth to New York. From the deceased gunman's statement to Echevarria the police were justified in believing that the robbers, who were Colombian nationals, had planned to leave the country after converting the stolen jewelry into cash. Under such circumstances it is clear that the exigencies of the situation made entry into defendant's apartment without a search warrant imperative. Maryland Penitentiary v. Hayden, 387 U.S. 294, 298--299, 87 S.Ct. 1642, 1645, 18 L.Ed.2d 782, 787 (1967).

Defendant further asserts the trial judge erred in ruling that his two oral confessions had been made voluntarily and were admissible as evidence against him. He argues that such testimony should not have been permitted because, contrary to the trial court's findings, (1) the language used in warning him of his constitutional right to remain silent did not comply with the mandate of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); (2) there was no knowing waiver of his constitutional rights because he did not understand the felony murder doctrine; (3) the confessions were induced after he was confronted with illegally seized evidence, and (4) the confessions were made during a period of illegal delay in taking defendant before a magistrate for arraignment.

We find no merit in any of the arguments raised by the defendant. A reading of the record of the Voir dire hearings supports the court's findings that defendant was fully advised of his constitutional rights by Detective Cubelo and that he knowingly and voluntarily waived such rights before making his oral confession. While the trial judge concluded that the warnings given thereafter by the assistant prosecutor were not in the precise context of Miranda, the court properly held that the prior warnings given by Cubelo and a New York magistrate the previous day were sufficient to make the second confession admissible. See State v. Magee, 52 N.J. 352, 374, 245 A.2d 339 (1968), Cert. den. Sub nom. Magee v. New Jersey, 393 U.S. 1097, 89 S.Ct. 891, 21 L.Ed.2d 789 (1969). Defendant's claim that he did not waive his constitutional rights because he did not understand the felony murder doctrine is untenable. In State v. McKnight, 52 N.J. 35, 55, 243 A.2d 240 (1968), the court held that if a defendant was given the Miranda warnings his waiver is no less voluntary, knowing and intelligent because he misconceived the inculpatory thrust of the facts he admitted. See also, State v. McRae, 276 N.C. 308, 172 S.E.2d 37, 40--41 (Sup.Ct.1970). Defendant's argument that his confessions were induced after he was confronted with illegally seized evidence is not supported by the record. It is also clear that there was no unreasonable delay in bringing defendant before a magistrate. Moreover, if there was a delay it would be only an element to be considered in...